There is no one in American public life quite like the Senator for Massachusetts. A Harvard law professor who brings an unusually gracious tone to national debates, her courtesy and good humour come with impressive expertise, a razor-sharp mind and an ability to put complex issues in simple but resonant language. Add endless energy and a commitment to challenge the abuse of financial and political power, and you get a sense of why, after barely two years in office, she is emerging as an alternative to a jaded and compromised Hilary Clinton, as the first US woman President.
Her approach is unfamiliar and refreshing because she sees no reason to ignore traditional ideals of freedom and responsibility which define the right in order to redress egalitarian concerns of the left. In a polarised political culture she defends a simple but inclusive logic: if the freedom to choose one’s path in life is a prime value, then a government which respects all citizens has a duty to minimise the role of unchosen factors, such as health, poverty, disability and – not least – the abuse of market, media and political power, which deprive citizens of the opportunity to share it.
The idea that government has a responsibility to pursue fairness while defending an ideal of liberty makes her the natural enemy of Republicans as well as Tea Party supporters, whose ideological approach condemns intervention to redress inequities which undermine freedoms, or otherwise leaves families who work hard and play by the rules with little or no support against a loss of income through no fault of their own.
Perhaps more intriguing philosophically is a deep sense that seemingly intractable issues of political morality can be settled by appeal to common values, relying on empirical evidence and rational argument – in an intellectual milieu still largely shaped by scepticism and post-modernist thinking, it puts her near the cutting edge of radical criticism.
But Warren is even more interesting as a person, with a modesty and vulnerability quite unlike the image of ultra-cool, relentlessly clever game-players seen in Aaron Sorkin’s popular TV series The West Wing. Early in her public career she was invited to appear on The Daily Show with Jon Stewart where, despite a gift for public speaking (she was Oklahoma State schoolgirl debating champion) she had a bad case of nerves and vomited twice while waiting to appear. As she says in a recent book, A Fighting Chance (Metropolitan Books, April, 2014).
‘I was miserable. I had stage fright — gut-wrenching, stomach-turning, bile-filled stage fright. And I was stuck in a gloomy little bathroom … I was having serious doubts about going through with this. I had talked to reporters and been interviewed plenty of times, but this was different. At any second, the whole interview could turn into a giant joke — and what if the joke turned on the work I was trying to do?… For the zillionth time, I asked myself why on God’s green earth I had agreed to sit down with Jon Stewart’.
She recalls how, after a shaky start – she mispronounced an acronym then forgot what it stood for – she was given a chance to explain why the nation should bring back prudential regulation after the opaque derivatives, dubious mortgages, fraudulent selling practices and scandalous bonuses of Wall Street. Stewart, who until then had been baiting her for laughs, was impressed. The 2009 interview, perhaps because it offered a hopeful sense of the difference between Warren and celebrity politicians like Sarah Palin, Hillary and John McCain, quickly became a hit on YouTube. But what lingers in the mind is her grace under pressure.
From that time she has rarely faltered, taking the intellectual leadership on reforms which Obama, for all his early promise and enthusiasm, has been reluctant or unable – perhaps too compromised by the price paid for past achievements – to push hard on. But what distinguishes Warren, and continues to surprise pundits, is a readiness to go back to first principles to challenge mindsets which no professional minder would dream of disturbing.
Two examples illustrate her ability to shape the conversation. The first is a campaign against a government practice of profiteering on student loans. In addition to crediting students for community work, she wants the Federal Reserve to provide loans at the same interest rates it gives banks – close to zero per cent. She can justify this, not just in terms of inter-generational fairness, but as an investment in the nation’s intellectual capital just as banks enjoy this privilege, so the theory goes, for the public good.
The second is her leading role in arguing for a basic wage able to lift a two-income family above the poverty line. There are several criteria, including national productivity levels, which argue that, if more equitable standards had prevailed over the past half-century, the present $7.25 basic wage – which has changed three times in thirty years – would be closer to $22.
But perhaps the most revealing story is how she became a national expert on the law and sociology of bankruptcy, a story which begins with an epiphany moment. Like most of her academic colleagues she had always assumed that those who filed for bankruptcy were losers and ‘deadbeats’ – people who took foolish risks because they were lazy, greedy, careless, or otherwise undeserving. She recounts how, while trying out for a job at the University of Texas Law School and teaching her first bankruptcy class, she invited a visiting professor – a leading authority and adviser to governments, to address her class.
‘Dr. Riesenfeld gave a few opening remarks to my class, talking about his work on the new laws and describing conversations with well-known members of Congress. When a student asked about the families in bankruptcy, he explained that the people who filed were mostly day labourers and housemaids who lived at the economic margins and always would. He seemed to suggest that a lifetime of poor choices had landed these folks in bankruptcy courts, and these people had little in common with my students and their friends and neighbours.’
She asked how he knew this, thinking he would cite a Congressional study or some authoritative research her students should be aware of; but he merely said it was common knowledge, something (he added) ‘every expert’ knows. Ignoring the barb she persisted – ‘Uh, how does everyone know that?’ At which he became irritated, dug in his heels, and simply repeated himself – everyone just knew – it was, he explained, the basis for the new law.
‘My God. I felt like Dorothy in The Wizard of Oz. (the professor) was a giant in the field, a man of deep learning and vast experience, and he really didn’t know what was happening on the ground. And if he didn’t know, then I figured no one else did, either’.
It was the beginning of a series of studies, undertaken with colleagues Teresa Sullivan and Jay Westbrook and known as the Consumer Bankruptcy Project, which has continued for the past three decades. It sought to clarify what leads people to file for bankruptcy and how the law should respond. The first report, published in 1989 in As We Forgive Our Debtors, won an award from the American Bar Association; in the words of bankruptcy law expert Rafael Pardo of Emory University, it prompted a ‘paradigmatic shift in the way we conceive of consumer bankruptcy and its causes’.
This was a world of serious, nose-to-the-grindstone scholarship, and the new paradigm was a focus on empirical studies over economic theories, including theories which are hard to separate from ideologies which serve the interests of influential groups. These studies would highlight the degree to which credit and bankruptcy laws had increased the risk that families and small business, however hard they worked and however responsible their decisions, would go to the wall. The same laws secured the profits of big corporations, especially banks and other credit providers.
For those interested in her academic standing and scholarly achievements in this field there is an excellent article by Pooja Nair, Insights from Professor Warren: Analyzing Elizabeth Warren’s Academic Career, in Bloomberg Law, March 15, 2013.
She also learned to survive in a very different world after Harry Reid, then Democratic leader of the Senate, invited her in November, 2008 to join a five-member Congressional Oversight Panel to advise Congress on the new bankruptcy laws. It was the beginning of a nine-year battle against the Big Banks, who marshalled an army of lawyers and lobbyists to re-write the rules to deprive families and small businesses from filing for discharge and a fresh start, leaving their assets to be garnished by the banks, credit cards and mortgage brokers, at the same time leaving the latter free to push debt to extremes. The story, recounted in detail in A Fighting Chance, was a David and Goliath struggle which she had no hope of winning.
But the lessons learned were useful in her other roles; first as the inspiration, brains and driving force behind the first stand-alone US Consumer Financial Protection Bureau, a remarkable achievement in the prevailing right-of-centre political culture, and then as Chair of a Congressional Panel to oversee the government’s bailout and other relief programs after the havoc wrought by the financial crisis. Both roles quickly made her the target of Republican resentment.
Wikipedia offers some insight into Warren’s driving concern to limit the excesses of American capitalism. It describes her lower middle-class background, with a family struggling to pay medical bills after her janitor father suffered an early heart attack, which meant a reduced income and a search for part-time jobs. She is attracted early by traditional Republican values, but learns there are other values in a civil society. Her present views are captured in a quote which goes to the heart of the US political divide, and whose controversial theme was taken up by Obama for his 2012 campaign; Warren was responding to a right-wing charge that asking the rich to pay more taxes was inciting ‘class warfare,’
‘There is nobody in this country who got rich on his own. Nobody. … You moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did. Now look, you built a factory and it turned into something terrific, or a great idea. God bless. Keep a big hunk of it. But part of the underlying social contract is, you take a hunk of that and pay forward for the next kid who comes along.’
The idea that political rights and duties derive from a social contract has a history going back to antiquity, but it flourished during the seventeenth century, when philosophers as varied as Hobbes, Locke and Rousseau were searching for a non-theological foundation for political obligation. The mid-twentieth century saw a major revival, largely due to the late John Rawls’ ‘veil of ignorance’, a device for making judgments of fairness in what seems a uniquely rational way – one which also meshes with both the ‘golden rule’ of Christianity and Kant’s concern for reciprocity and universalizability.
Warren’s response emphasises the degree to which incomes and taxes – and the pattern of wealth distribution they display – are contingent on the co-operation of those on lesser incomes – be they teachers, firemen, road workers, police, carpenters, bus drivers, nurses, bank clerks or aged carers, in a common enterprise. It means the property rights of the wealthy are determined not just by the effort and talent they contribute, but as part of a comprehensive scheme of fairness whose component parts, depending on the evidence, are always open to a better, more realistic interpretation.
Warren argues from this evidence; in an early study co-authored with daughter Amelia Tyagi she found that a fully employed worker earns considerably less than thirty years ago. Although modern families spend less on clothing, appliances, and general consumption, essential costs – such as mortgages, health, child care and transportation – have greatly increased. (The Two-Income Trap: Why Middle-Class Mothers and Fathers Are Going Broke. Basic Books, 2003). Jeff Madrick, writing in The New York Times, said:
The authors find that it is not the free-spending young or the incapacitated elderly who are declaring bankruptcy so much as families with children … their main thesis is undeniable…. More clearly than anyone else, I think, Ms. Warren and Ms. Tyagi have shown how little attention the nation and our government have paid to the way Americans really live.
In the two years since her election as US Senator – in one of the most nail-biting contests in Massachusetts history because the odds were so unfavourable – Warren has been a frequent and articulate contributor to national debates. But her recent and rapid rise to household name status has more to do with public interviews and TV question-and-answer sessions, many of which have gone viral, including her confrontations with heavyweights Ben Bernanke, former Chairman of the Federal Reserve and Tim Geithner, former Treasury Secretary.
A good example of her style is a famous clash with CNBC anchors, who seemed to forget she was a leading authority and tried to bully her; but others highlight her forthright manner and forensic skills in Senate hearings on regulatory failures behind the 2008 financial crisis, and the hearings on systemic failures behind the US- based Hongkong and Shanghai Banking Corporation, which money-laundered billions for Mexican drug cartels. These are dramatic and often entertaining because the explanations are so feeble or the silences and body language so revealing; there is a good selection on YouTube.
American media culture is incestuous; it thrives on icons, homilies and clichés and some journalists have been portraying the Senator as a female version of James Stewart’s character in Frank Capra’s 1939 film Mr. Smith goes to Washington, the story of a naïve and idealistic man whose basic decency triumphs in a world of deception and intrigue. But Warren is in a class of her own – she has spent much of her life studying economic theory and regulatory systems, and believes theory must square with practice, and practice with the nation’s values. She has also acquired – through a long and at times brutal apprenticeship – a good understanding of how Washington works.
She is also fighting for a good deal more than a national camp for the Boy Rangers of America. She wants nothing less than the nation to live up to its image of itself as home of the brave and land of the free. She wants America to fulfil its destiny as a nation which treats all its citizens as members of the same community, regardless of their ability to compete for wealth, social status or political power. She wants, in short, to bring new life to Obama’s early and inspiring, but now fading, vision.